STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS M. WERTHMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3893

) SCHOOL BOARD OF SEMINOLE COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on October 11 and 12, 1990, in Sanford, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: John Chamblee, Esquire

Chamblee, Miles & Grizzard

202 Cardy Street Tampa, Florida

For Respondent: Ned N. Julian, Jr., Esquire

Stenstrom, McIntosh, Julian Colbert, Whigham & Simmons

200 West First Street Sanford, Florida

STATEMENT OF THE ISSUES

Whether the Petitioner, a teacher under contract with the School Board of Seminole County, should be terminated from his employment based on misconduct in office, gross insubordination, and immorality, based on conduct during the course of the school year 1989-90 and an incident occurring on April 11, 1990.

PRELIMINARY STATEMENT

Following the allegation of misconduct and an internal investigation, the Superintendent recommended that Petitioner be terminated. Petitioner was suspended without pay by the School Board on June 14, 1990. Petitioner demanded a formal hearing under Chapter 120 and this matter was referred to the Division of Administrative Hearings.

Following motions for continuance, this matter was scheduled for hearing. Prior to the hearing, the School Board timely sought take the testimony of the complaining witness by telephone, per Fla. R. Civ. P. 1.310(b)(7), on the grounds that the witness had permanently departed the United States and had returned to his home in the State of Israel. Petitioner opposed the motion, and

the objection was sustained. The School Board then sought to depose the witness by videotape, pursuant to Fla. R. Civ. P. 1.310(b)(4). Petitioner's motion for protective order was denied and the motion was granted. Upon the appointment of a Commissioner by the Circuit Court for Seminole County, the deposition of the complaining witness, Gil Montag, and two witnesses called on behalf of the Petitioner were taken by videotape in Tel Aviv, Israel.

At the hearing, it was determined that although Thomas M. Werthman sought a hearing to contest the charges and the style of the case designated him as the Petitioner, nevertheless, the School Board is the charging party and has the burden of proof and the burden to go forward with the evidence. At the commencement of the formal hearing, counsel for Petitioner filed a Motion to Strike the name of Richard Ryder as a witness. After hearing argument of counsel, the motion was granted on the grounds that the testimony of the witness relates to an incident which occurred in the school year 1988-89 for which the Petitioner received a letter of caution. The letter was placed in his personnel records and acted as the final resolution of that incident. As such, the testimony relates to a collateral matter which has been previously resolved and was therefore not relevant and, additionally, would be highly prejudicial to the Petitioner. See generally: Department of Transportation vs. Career Service Commission, 366 So.2d 473 (Fla. 1st DCA 1979). The School Board proffered the testimony of the witness and three exhibits were marked for identification, School Board Exhibits A, B, and C. The exhibit previously marked for identification as School Board Exhibit A was subsequently admitted in evidence and marked as School Board Exhibit 2. The School Board called as witnesses: the Petitioner, John Reichert, Darvin Boothe, William Ryan Anderson, Gil Montag (by videotape deposition), Deputy Sheriff Dale Wegner, Norma Storey, Judy Milwee, Daniel Terrill, and Hisham Aboulhoson. Six exhibits were admitted in evidence, including Petitioner's complete personnel file. The Petitioner testified in his own behalf and presented the testimony of Dr. Russell Graham, Kim Vosse, Swen Vosse, Ram Ahuvia and Saar Ahuvia (by videotape deposition), Mor Ahuvia, Rachel Ahuvia, Toni Mariani, Loretta Mariani, James Gibson, and Julie Pinckney. Ten exhibits were admitted in evidence, including 13 photographs and a videotape of the park area. The transcript of the videotaped depositions were filed for record at the hearing.

The transcript of the hearing was filed on December 31, 1990. On motion by the parties, the time for the filing of proposed findings of fact, conclusions of law and argument of counsel was extended. The School Board filed its proposals on January 25 and the Petitioner filed his proposals on January 28, 1991. The Petitioner has duly preserved the issue of entitlement to seek recovery of costs and attorneys fees at the conclusion of this proceeding. The proposals have been given careful consideration and have been adopted where supported by the greater weight of the evidence. My specific ruling on the proposals submitted by the parties as required by Section 120.59, Florida Statutes are set forth in the appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner has been employed by the School Board of Seminole County since 1983 as a classroom teacher.

   
   

2. Petitioner is employed pursuant to a Professional Services Contract.

3. Petitioner was assigned to Lake Brantley High School during the 1988-89 and 1989-90 school year. During the 1989-90 school year, Petitioner taught two classes of honors world history and three classes of humanities.

   
   

4. By letter dated August 17, 1989, which was hand delivered to Petitioner and a copy was placed in his personnel file, Petitioner was cautioned by Darvin Boothe, Principal of Lake Brantley High School, that:

   
   

   Any recurrence of behavior of this nature will result in the most serious of consequences.

   You are strongly advised to take appropriate measures to resolve the confusion, which, by your account, caused you to behave in a way which was unprofessional and unsound.

   
   

   In the letter, it was alleged that in late Fall of 1988 Petitioner placed a personal ad in the Orlando Sentinel which said: "Male seeks male for friendship." A fifteen year old male answered the ad in writing, and Petitioner replied in writing. A telephone conversation then occurred, and this ended the transaction. There was concern expressed by Principal Boothe that the purpose of the correspondence was an attempt by Respondent to initiate a homosexual liaison. Petitioner did not respond in writing to this letter.

   
   

5. The Petitioner was a close acquaintance of the Ahuvia family, Citizens of the State of Israel and living in Seminole County. The oldest son, Saar, had been a friend of the Petitioner's son who was killed in an accident while an exchange student in Spain in September 1989.

   
   

6. Mrs. Rachel Ahuvia invited the Petitioner to her home on frequent occasions after the death of Petitioner's son and attempted to involve the Petitioner in activities with her children because of Petitioner's apparent emotional reaction to the loss of his son.

   
   

7. Ahuvia invited Petitioner to her home for Hanukkah in 1989 and to Passover supper in April 1990. During Petitioner's visit at Passover, Ahuvia asked Petitioner if he would take three of her children, Saar, Ram and Mor on an outing during the Spring Break. Petitioner agreed.

   
   

8. It was arranged that Petitioner would take the three children to Rock Springs Park on April 11, 1990. Petitioner suggested that Saar being a 10th grade teenager and the other two being 11 and 9, could invite a friend as company in the outing. One or more friends his age were contacted before Gil Montag (who was 15 at the time and a school mate of Saar's) was contacted and agreed to go on the outing.

   
   

9. Petitioner arrived at the Ahuvia home between 12:30 to 1:00 p.m., on April 11, 1990. Saar, a musician, was sleeping after having been up late taping a musical arrangement; rather than wake him, Mrs. Ahuvia suggested that the Petitioner and the other children go without Saar.

   
   

10. Petitioner drove to the home of Gil Montag. Montag's parents were away, however, Gil had a friend with him, Danny Terrill. Gil Montag was told that Saar was unable to come. Gil decided to come anyway, and it was agreed that he would also bring his friend, Danny Terrill.

11. The Petitioner and the four children drove to Rock Springs in Petitioner's car. When they arrived, they found it was closed and proceeded to Wekiva Springs. The trip took approximately 20 minutes, and the group arrived at Wekiva Springs at approximately 2:00 p.m.

    
    

12. Enroute the children discussed several subjects, including Gil Montag's new earring. Danny Terrill also used one or more Hebrew words he had been taught by Gil Montag, one of which was "zain omed", a Hebrew word meaning "penile erection". The Petitioner requested that this word not be used in the presence of the young children.

    
    

13. When the party arrived at Wekiva Springs, they passed through a gate tended by a park ranger. Several hundred people attended the park for day use that day. During the time Petitioner and his party were in the swimming area, there were at least 50 people present at any one time.

    
    

14. During the time that Petitioner and his party were at the park, they were in the swimming area or on the grounds immediately surrounding the swimming area. Virtually all of the area where Petitioner and his party were located was within plain view of other patrons of the park swimming or sunning on the immediately surrounding grounds.

    
    

15. During the time Petitioner was in the park, he played with the two younger children in the water and engaged in horseplay with the two older boys, Gil Montag and Danny Terrill, both in the water and in the surrounding grounds.

    
    

16. A student known to the Petitioner, Toni-Ann Mariani and her visiting cousin, Loretta Mariani, arrived in the park by canoe and saw Petitioner and his party in the swimming area when they arrived. They also saw the two younger children and two older boys, who were introduced by Petitioner, in the swimming area. During the entire period of time Toni-Ann was there, the Petitioner as well as the younger children and two older boys appeared to be engaging in activities typical for the occasion, and it did not appear that anyone in the party was upset, angry or frightened.

    
    

17. During one episode of horseplay, Danny Terrill pulled the string out of Gil Montag's bathing suit, which annoyed Gil Montag. In addition, Petitioner and the two older boys wrestled. Petitioner had wrestled in college and was involved with the high school wrestling program. Gil Montag had wrestled for a time in high school, and Danny Terrill had earned several belts in karate.

    
    

18. During the wrestling, Petitioner put Gil Montag briefly in a scissors hold around his waist, a legitimate maneuver in olympic style wrestling. During that time, Danny Terrill was a short distance away and did not see any evidence that Petitioner was sexually aroused, nor did Gil Montag make any utterance at the time that made it appear that he was in distress or otherwise upset by the horseplay.

    
    

19. During another episode of horseplay, Petitioner, Gil Montag and Danny Terrill, chased each other in the grounds surrounding the swimming area. This activity was not hostile or engaged in by Petitioner for some improper purpose and lasted for a short period of time, approximately 2 to 5 minutes.

    
    

20. At about 4:00 p.m., Petitioner and his party decided to leave the park and return home. All of the children were dropped off at their homes without incident.

21. That evening, while Gil Montag's parents were still away, Gil Montag and Danny Terrill invited some friends over and had a party. Although under the legal drinking age, beer was served and consumed, Gil stating that he drank about 12 beers. Danny Terrill testified that 24 beers were shared among 8 boys and that each boy had 2 or 3. Upon returning home from the outing and during the party, no mention was made by Gil Montag to Danny Terrill or to anyone that he had been assaulted in any fashion by Petitioner. A comment was made by Danny Terrill to the effect that he thought Petitioner was a "faggot" because of his mannerisms, not because of any conduct by Petitioner toward Danny. Gil Montag did not, in response to that statement, indicate that he had experienced any overture or conduct by the Petitioner that would substantiate Danny Terrill's slur.

    
    

22. The alleged victim, Gil Montag, testified that during the horseplay in the swimming area, that Petitioner pulled the string out of his bathing suit, and that during this episode, while Danny Terrill was in the area, Petitioner was sexually aroused.

    
    

    Montag further testified that during the period Petitioner and the two older boys were "playing chase" on the grounds, that this episode was done in a hostile manner and that, in fact, he had fallen down 10 to 30 concrete steps, and as a result was cut and bleeding in many places on his body.

    
    

    Gil Montag further asserts that during the visit to the park, he was led against his will by the hand to the water after the above-described chasing and then taken against his will by Petitioner to a secluded area of the swimming area where Petitioner wrapped his legs around Gil Montag's waist and moved around in an indecent fashion for the presumed purpose of sexual gratification. Montag asserts that this went on for 10 minutes and that he was unable to escape from the grasp of Petitioner during that time.

    
    

23. On or about May 16, 1990, Petitioner notified Gil Montag and his parents that Gil was earning a failing grade in Petitioner's class. During a discussion with Gil's father, Mr. Montag requested that his son's grade be changed and that he be transferred to a different teacher for the last nine weeks of the school year. Petitioner declined and offered the opinion that Gil's mind was not on his work and that he was preoccupied with girls and having a good time. That same evening, Gil Montag told his parents that he was upset because of Petitioner's alleged conduct at Wekiva Springs on April 11. Prior to this occasion, Gil Montag had not made this accusation, but states that he did not do so because of fear.

    
    

24. During the school year 1989-90, Petitioner would regularly touch or pat students, including Ryan Anderson, Hisham Aboulhoson and Gil Montag, on their back, butt or knee as a sign of positive reinforcement or approval of work completed.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

26. The issues in this case concern whether Seminole County School Board should terminate Petitioner from his position of employment as a professional service contract teacher. Such charges are clearly penal in nature. School Board of Pinellas County v. Noble, 384 So.2d 285 (Fla. 1st DCA 1980). However,

    in such penal proceedings, the charges must only be proven by the preponderance of the evidence. Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986). Dileo

    v. School Board of Dade County, 15 FLW 2781 (Fla. 3rd DCA July, 1990).

    
    

27. The Petition for Dismissal issued by the Superintendent alleges that Petitioner is guilty of misconduct in office, gross insubordination, and immorality, two of which are grounds for termination under Section 231.36(1)(a), Florida Statutes.

    
    

28. Misconduct in office is defined by Rule 6B-4.009(3), Florida Administrative Code, as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system.

    
    

29. Gross insubordination or willful neglect of duties is defined by 6B- 4.009(4), Florida Administrative Code, as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

    
    

30. Immorality is defined by Rule 6B-4.009, Florida Administrative Code, as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into a public disgrace or disrespect and impair the individual's service in the community.

    
    

31. Rule 6B-1.006(3)(a), (e), and (h), Florida Administrative Code, requires that a teacher shall make reasonable effort to protect students from conditions harmful to learning or to health or safety; shall not intentionally expose a student to unnecessary embarrassment or disparagement; and, shall not exploit a professional relationship with a student for personal gain or advantage.

    
    

32. A teacher holding a professional services contract may be terminated during the school year only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. Section 231.36(1)(a), Florida Statutes.

    
    

33. The charges brought by the Petitioner cannot be sustained because the credible evidence of record, as reflected in the above findings of fact does not establish that Petitioner was guilty of an act which constitutes misconduct in office. Where the School Board seeks to dismiss a teacher from employment upon the basis of misconduct in office, it is essential to establish each and every element of the charge. See Jenkins v. State Board of Education, 399 So.2d 103,

    105 (Fla. 1st DCA 1981); Smith v. School Board of Leon County, 405 So.2d 183,

    185 (Fla. 1st DCA 1981); Boyette v. State PPC, 346 So.2d 598, 600 (Fla. 1st DCA 1977); cf. Baker v. School Board of Marion County, 450 So.2d 1191, 1195 (Fla. 5th DCA 1984); Braddock v. School Board of Nassau County, 455 So.2d 394 (Fla. 1st DCA 1984); Wray v. Dept. of Professional Regulation, 435 So.2d 312, 315 (Fla. 1st DCA 1983).

    
    

34. The facts fail to support the School Board's claim that the Petitioner touched a student, Gil Montag, improperly during an outing at Wekiva Springs on April 11, 1990.

35. In addition, the facts fail to show that he improperly touched Montag and two other students, Ryan Anderson and Hisham Aboulhoson, in the classroom during the school day.

    
    

36. The School Board suggests that even if it is determined that Petitioner did not touch Gil Montag, Ryan Anderson or Hisham Aboulhoson improperly, that his conduct which made it possible for the false allegations to be asserted is sufficient grounds for dismissal, predicated in part on the August 17, 1989 letter of caution. In the absence of proof of the principal allegations, the inference that Petitioner may be prone to such conduct cannot form a basis for discharge under Section 231.36, Florida Statutes. McClung v. Criminal Justice Standards and Training Commission, 458 So.2d 887, 888 (Fla. 5th DCA 1984).

    
    

37. Absent proof that Petitioner touched or sought to touch any student for an improper purpose, the evidence merely shows that he invited a student and friend on an outing with hundreds of others present to openly engage in harmless horseplay. It also shows that Petitioner openly in class touched students occasionally as a sign of approval or consolation.

    
    

38. In summary, Respondent has not shown that the conduct of Petitioner as established on these facts, was prohibited, directly or by reasonable implication, by the letter dated August 17, 1989. The claim that Petitioner's conduct constitutes misconduct in office cannot be sustained.

    
    

39. Respondent has also failed to establish how Petitioner's conduct when separated from the allegations of improper touching affected Petitioner's employment or effectiveness in the community apart from the notoriety resulting from Respondent's own investigation. See, Sherburne v. School Board of Suwannee County, 455 So.2d 1057 (Fla. 1st DCA 1984); Baker v. School Board of Marion County, 450 So.2d 399 (Fla. 5th DCA 1984). The fact of notoriety at the school resulting from the bringing of charges and the investigation of such charges is not competent evidence to establish impairment or a charge of misconduct.

    
    

40. Concerning the allegation of immorality as defined in Rule 6B- 4.009(2), Florida Administrative Code, the conduct of Petitioner as found does not evidence an intent to engage in or solicit sexual contact in any instance where he came in contact with a student. It is sufficient to state that Petitioner's conduct has not been established by Respondent to be contrary to standards of public conscience or good morals or such as to cause public disgrace or disrespect.

    
    

41. Further, the evidence here does not satisfy the burden of proving gross insubordination in that Petitioner has not sought to establish a continuing refusal to obey a direct order reasonably given. In Rutan v. Pasco County School Board, 435 So.2d 399 (Fla. 2nd DCA 1983), the court analyzed the essential elements of the charge of gross insubordination or willful neglect of duty as defined in Chapter 6B-4.09, Florida Administrative Code (now numbered

    6B-4.009). The court found that in the absence of evidence that the teacher was given a direct order regarding his conduct or that his alleged misconduct was constant or continuous, evidence was insufficient to sustain an order of the School Board finding him guilty of gross insubordination or willful neglect of duty. The court stated in Rutan:

    
    

    . . . gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order,

    reasonable in nature, and given by and with proper authority. This administrative rule

    indicates that to be guilty of gross insubordination or willful neglect of duty, the teacher must intentionally refuse to obey a reasonable, direct order, and this refusal must be done in a constant and continuous manner.

    
    

42. The School Board's attempt to rely upon the issuance of the August 17, 1989 letter is misplaced. The issue investigated by the principal and addressed in the memo appears to relate to placing personal ads or corresponding with students relating to sexual or, more specifically, homosexual liaisons in response to personal ads. By the terms of the memo and the testimony of Mr. Boothe, it is undisputed that Petitioner never met or came in physical contact with any student in response to the ad in the Fall of 1988. The memo does not expressly or by reasonable implication direct Petitioner not to touch any student in class nor to attend an outing in public and engage in horseplay with a student. In short, there is no evidence in this case that Petitioner disobeyed on any occasion the August 17, 1989 memo. Therefore, there is no evidence that such disobedience was done in a constant and continuous manner.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board enter a Final Order finding, as follows:

1. The Petition for Dismissal, filed by the Superintendent of Schools for the Seminole County School District, be DENIED.

   
   

2. The Petitioner be reinstated to his position of employment under his professional services contract, and that he receive full back pay and benefits withheld from the date of suspension.

DONE AND ENTERED this 27th day of March, 1991, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this

27th day of March, 1991.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings of Fact.

Accepted in substance: paragraphs A.1,2,3;B.1,2,3,4,5,6,7,8,9

(in part), 10,11,13,14 (in part), 15 (in part), 16 (in part), 18, 19 (in part),

20,21,22,23,24 (in part)

Rejected as argument: paragraphs B.9 (in part), 12,14 (in

part),15 (in part), 16 (in part), 17,19 (in part), 24 (in part),28

Respondent's Proposed Findings of Fact.

Accepted in substance: paragraphs 1,2,3,4,8,9,10 (in part),17,18

Rejected as irrelevant, excluded evidence of a previously resolved collateral matter: paragraphs 5,6,7

Rejected as against the greater weight of evidence: paragraphs 11,12,12 (#2),13,14,15,16,17

Copies furnished:

John Chamblee, Esquire Chamblee, Miles & Grizzard

202 Cardy Street Tampa, FL 33606

Ned N. Julian, Jr., Esquire Stenstrom, McIntosh, Julian Colbert, Whigham & Simmons

200 West First Street Sanford, FL 32772

Robert W. Hughes Superintendent

Seminole County School Board 1211 Mellonville Avenue

Sanford, FL 32771

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, FL 32399-0400

Docket for Case No: 90-003893

Orders for Case No: 90-003893